Judgment :- Nainar Sundaram, J. 1. The questions which the learned single Judge Sivasubramanian, J., deemed fit to refer to an appropriate Bench for answers, and which questions have given us an opportunity to do some investigation into the implications of the provisions concerned, in the light of the pronouncements of the highest Court in the land run as follows: “1. Whether a Court auction sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2)(a) of C.P.C. by selling more extent of property than necessary is a nullity being a sale without jurisdiction even in cases where the judgmentdebtor had participated in the settlement of proclamation and did not raise any objection for the extent of property brought for sale? 2. 2. In view of the decision of the Supreme Court in Dhirendra Nath v. Sudhir Chandra)(AIR 1964 SC 1330), whether the decision in Kumaraswami Goundcr v. P.P. Ramaswamy Nadar (1980 TLNJ 47); in Subba Naicker v. Durai Raj (98 L.W. 352-1985 II MU 123) and in D. Balu v. Periasami (100 L.W. 918) have correctly interpreted the scope of the judgment in T.P.S. Reddy v. Padmavathomma ( AIR 1977 SC 1789 =90 L.W. 124 S.N.)?” O. 21, R. 66(2(a), C.P.C, after its amendment by Central Act 104 of 1976, reads as follows: “Proclamation of sale by public auction: Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale and specify as fairly and accurately as possible (a) the property to be sold or, where a part of the property would be sufficient to satisfy the decree, such part.” O. 21, R. 64, C.P.C, which has not undergone any change by Central Act 104 of 1976, reads as follows: “Power to order property attached to be sold and proceeds to be paid to person entitled: Any Court executing a decree may, after notice to the decree holder and judgmentdebtor, order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.” O. 21, R. 66(2)(a), C.P.C, is only a corollary to O. 21, R. 64, C.P.C. One more provision in C.P.C. may also have to be referred to and that is O. 21, R. 90, and it reads as follows, after the amendment by the Central Act 104 of 1976: “Application to set aside sale on ground of irregularity or fraud:1. Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation: The mere absence of, or defeat in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.” 2. The first part of Question No. 1 stands answered in the negative in my view by the pronouncement of the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1 first part of Question No. 1 being: “Whether a Court auction sale held in contravention of O. 21, R. 64, and O. 21, R. 66(2)(a) of C.P.C, by selling more extent of property than necessary is a nullity being a sale without jurisdiction.” In that case, the question with regard to the validity of a Court-sale held in contravention of S. 35 of the Bengal Money Lender Act, 1940 (Bengal Act 10 of 1940), hereinafter referred to for brevity as Bengal Act, came up for consideration. The Supreme Court was dealing with two matters. In both the matters, the judgment-debtor was common. But, there were different mortgagee-decree-holders. In one matter, eleven properties were brought for sale in execution and the decree-holder gave the valuation for the said properties and judgment-debtor, though he received a notice under O. 21, R.oo, C.P.C., did not file any objection to the valuation. Finally, two of the said properties were put up for sale and they were sold. The judgment-debtor filed an application before Executing Court for setting aside the sale under O. 21, R. 90, C.P.C., inter alia on the ground that S. 35 of the Bengal Act was not complied with. The first court held that there was no fraud in publishing or conducting the sale and that the price of the lots sold was fair and that the sale was not vitiated by reason of infringement of S. 35 of the Bengal Act. The first court held that there was no fraud in publishing or conducting the sale and that the price of the lots sold was fair and that the sale was not vitiated by reason of infringement of S. 35 of the Bengal Act. On appeal, a Division Bench of the High Court of Calcutta held that though there had not been any substantial injury to the judgment-debtor, the provisions of S. 35 of the Bengal Act were mandatory and therefore, the infringement of the said provisions would invalidate the sale. In that view, the sale was set aside. In another matter, eight properties were described in the execution petition and their valuation given. The judgment-debtor filed objections to the valuation given by the decree-holder, but on the dates fixed for setting the valuation of the said properties, neither the judgment-debtor nor his advocate appeared in Court and court directed that both the valuations of the decree-holder and the judgment-debtor be noted in the sate proclamation and ultimately two lots of the properties were sold in execution. The judgment-debtor filed application before the first Court for setting aside the sale under O. 21, R. 90, C.P.C., on grounds similar to those raised in the first matter. The said application was dismissed by the first court for the very same reasons as in the other matter. On appeal, the Division Bench of the High Court of Calcutta set aside the sale. The matters came before the Supreme Court by way of Civil Appeals. Before the Supreme Court, for the decree-holders, it was contended that whether S. 35 of the Bengal Act was mandatory or directory, the sale held in violation of the said provisions is only illegal; but not a nullity and therefore it could be set aside only in the manner and for reasons prescribed in O. 21, R. 90, C.P.C., and further that as the judgment-debtor did not attend at the drawing up of the proclamation of sale, the sale cannot be set aside at his instance. This contention was examined by the three learned Judges of the Supreme Court, adverting to (5.21, R. 64, C.P.C., O. 21, R. 66, C.P.C., before its amendment by Central Act 104 of 1976 and O. 21, R. 90, C.P.C., as it stood amended in Calcutta then, and it was opined that non-compliance with the said provisions is a material irregularity in publishing or conducting the sale, and the court under the first proviso to O. 21, R. 90, C.P.C., as it stood amended in Calcutta then, cannot set aside the sale, unless it is satisfied that the applicant has sustained substantial injury by reason of such irregularity and further a party who received the notice of the proclamation, but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under that provision. 3. S. 35 of the Bengal Act reads as follows: “Notwithstanding anything contained in any other law for the time being in force, the proclamation of the intended sale of property in execution of a decree passed in respect of a loan shall specify only so much of the property of the judgment debtor as the court considers to be saleable at a price sufficient to satisfy the decree, and the property so specified shall not be sold at a price which is less than the price specified in such proclamation: Provided that, if the highest amount bid for the property so specified is less than the price so specified, the court may sell such property for such amount, if the decreeholder consent in writing to forego so much of the amount decreed as is equal to difference between the highest amount bid and the price so specified.” O. 21, R. 66(2)(a), C.P.C., before the amendment by Central Act 104 of 1976, which was considered by the Supreme Court, read as follows: “Such proclamation drawn up after the notice to the decreeholder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible — (a) the property to be sold.” The said amendment in O. 21, R. 66(2)(a), C.P.C., has only reiterated the requirements of O. 21, R. 64, C.P.C., with regard to drawing up of proclamation and it has not by itself brought about any new requirement. O. 21, R. 90, C.P.C., as it stood amended in Calcutta then, read as follows: “. Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale may apply to the court to set aside the sale on the: ground of a material irregularity or fraud publishing or conducting it or on the ground of failure to issue notice to him as required by R. 22 of this order. Provided (i) that no sale shall be set aside on the ground of such irregularity, fraud or failure, unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity, fraud or failure. (ii) that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up, unless objection was made by him at the time in respect of defect relied upon.” 4. The discussion of this aspect and the answer given by the Supreme Court will stand better appreciated by extracting the relevant portions of the pronouncement as follows: “Under O. 21, R. 64, C.P.C., the executing court may order that any property attached by it and liable to sate or such portion thereof as may seem necessary to satisfy the decree shall be sold. Under R. 66 of the said Order of the Code when a property is ordered to be sold in public auction in execution of a decree the court shall cause a proclamation of the intended sale to, be made and such proclamation shall specify as fairly and accurately as possible, among others, the property to be sold and such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor under sub-4.(4) thereof, the court may summon and examine any person or require him to produce any document in his possession or power relating thereto. Under the said provisions the court has power to direct the sale of the entire property attached or a part thereof sufficient to satisfy the decree and its shall also specify the said property directed to be sold in the proclamation fixed after giving notice to both the decree-holder and the judgment-debtor. Under S. 3S of the Act a duty is cast upon the court in settling the proclamation of the intended sale of property in execution of a decree passed in respect of a loan to which the Act applies to specify only so much of the property of the judgment-debtor as the court considers to be saleable at a price sufficient to satisfy the decree and not to sell the property so specified at a price which is less than the price so specified in such proclamation. This provision is in effect a statutory, addition to O. 21, R. 66, C.P.C. Indeed this provision could have been added as another clause to the said rule. This statutory provision pertains to the field of proclamation. The rule says so in terms. The said two conditions are also steps to be taken by the court in the matter of publishing or conducting the sale. If a sale is held without complying with the said conditions, what is the remedy open to a party affected thereby to get the sale set aside? O. 21, R. 90, C.P.C, in terms provides for the remedy. It says that a person whose interests are affected by the sale may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it or on the ground of failure to issue notice to him as required by R. 22 of the Order. As the non-compliance with the said conditions is a material irregularity in publishing or conducting the sale the court under the first proviso to O. 21, R. 90 of the Code cannot set aside the sale unless it is satisfied that the applicant had sustained substantial injury by reason of such irregularity. As the non-compliance with the said conditions is a material irregularity in publishing or conducting the sale the court under the first proviso to O. 21, R. 90 of the Code cannot set aside the sale unless it is satisfied that the applicant had sustained substantial injury by reason of such irregularity. That apart, under the second proviso to the said rule, no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person, who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up unless objection was made by him at the time of drawing up of the proclamation in respect of the defect relied upon. Shortly stated, the non-compliance with the provisions of S. 35 of the Act is a defect or an irregularity in publishing or conducting the sale. A party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application, under O. 21, R. 90, C.P.C. Even if he could, the sale cannot be set aside unless by reason of the said defect or regularity he had sustained substantial injury.” 5. I must straightway point out that on the simple ground that the provisions, of C.P.C. dealt with by the Supreme Court being couched slightly in a different manner from the said provisions after the amendments introduced by Central Act 104 of 1976, there cannot be an alteration of the general ratio of the Supreme Court, the reason being the amendments have not changed the substance of the provisions. Hence, I will answer the first part of question No. 1 by saying that the court auction-sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C, by selling more extent of property than necessary, cannot per force be held to be a nullity, being a sale without jurisdiction and any breach of the above rules may bring the case only within the ambit of O. 21, R. 90, C.P.C. The opinion expressed by the Supreme Court was on the basis that S. 35 of the Bengal Act was in effect, a statutory addition to O. 21, R. 66, C.P.C, and the said provision could have been added as another clause to the said rule, and this statutory provision pertains to the field of proclamation and the rule says so in terms and the said two conditions are also steps to be taken by the court in the matter of publishing or conducting the sale. 6. Nullity is a proceeding that lacks sanctity at the root of the matter and that proceeding has no foundation in law. It is defective at the inception itself as to be of no avail or effect whatever at all. It is void and it is incurable and cannot be validated. Such could not be the position with reference to the violation of O. 21, R. 64, C.P.C., and O. 21, R. 66(2)(a), C.P.C., since the requirements of the said provisions are only in the field of proclamation or in the field of publishing or conducting the sale and violations thereof could only be irregularities bringing any grievance thereon under O. 21, R. 90, C.P.C The Supreme Court viewed the non-compliance with the said provisions as a material irregularity in publishing or conducting the sale, bringing the matter within the ambit of O. 21, R. 90, C.P.C. The Supreme Court did not hold that the violation of the said provisions will make the sale, a nullity. That settles the answer to the first part of Question No. 1. 7. That settles the answer to the first part of Question No. 1. 7. The second part of Question No. 1 seems to have presupposed that a court auction-sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C, by selling more extent of property than necessary is a nullity being a sale without jurisdiction; and proceeds to ask as to whether the position will stand altered in cases where the judg ment-debtor had participated in the settle ment of proclamation and did not raise any objection for the extent of property brought for sale. The second part of Question No. 1 poses the querry as to whether the factors envisaged therein would bring an exception to any general rule that a sale as is referred to in the first part of Question No. 1 is a nullity. When the first part of Question No. 1 itself has been answered in the negative, holding that such a sale is not per force a nullity, being a sale without jurisdiction, the participation of the judgment-debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale need not be counted as a factor of exception to any proposition to the contrary. The participation of the judgment-debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale, may be relevant and have to be considered and looked into, when there is a resort to O. 21, R. 90, C.P.C, for setting aside the sale on the ground of non-conformity with the provisions of O. 21, R. 66(2)(a), C.P.C, and O. 21, R. 64, C.P.C As to how far the participation of the judgment-debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale will preclude him from raising such an objection in an application under O. 21, R. 90, C.P.C, has also been discussed by the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1 by adverting to the provisions of O. 21, R. 90, C.P.C, as it stood amended in Calcutta then. The two provisos to sub-rule (1) of O. 21, R. 90, C.P.C, as it stood amended in Calcutta then, made it clear that no sale shall be set aside on the ground of irregularity, fraud or failure to issue notice as required by Order 22, unless upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity, fraud or failure, and further no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person, who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up, unless objection was made by him at that time in respect of defect relied upon. O. 21, R. 90, C.P.C., after its substitution by Central Act 104 of 1976, has practically adopted the substance of that provision, as per the amendment in Calcutta then. 8. Question No. 1, couched as it is and referred for our answer, does not cover this aspect at all, in the sense it does not call for an answer for us as to how far in an application under O. 21, R. 90, C.P.C, built on a violation of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C, the participation of the judgment debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale, would be a factor to be put against him. It will not be in order for us to travel beyond the questions specifically referred for our answers. I will be content only to make a reference as to how the Supreme Court in the pronouncement, referred to above, looked into the question, without in any way expressing any categoric opinion of mine over the same. 9. It will not be in order for us to travel beyond the questions specifically referred for our answers. I will be content only to make a reference as to how the Supreme Court in the pronouncement, referred to above, looked into the question, without in any way expressing any categoric opinion of mine over the same. 9. The Supreme Court adverted to the divergence of views reflected in the decisions cited at the Bar before it and ultimately upheld the view that an objection that the sale proclamation did not conform to S. 35 of the Bengal Act, cannot avail a judgment-debtor in an application under O. 21, R. 90, C.P.C., if he was present at the drawing up of the sale proclamation and did not raise any such objection at the time, nor can it avail a judgment-debtor, who after receiving notice, did not attend at the drawing up of the sale proclamation at all. While doing so, the Supreme Court agreed with the reasoning of a Division Bench of the High Court of Calcutta in Manindra Chandra v. Jagadish Chandra 1 which reasoning has also been agreed to by a subsequent Division Bench of the High Court of Calcutta in Maniruddin Ahmed v. Umaprosanna 2 10. The Supreme Court also adverted to the contrary view, sustained by the Division Bench of the High Court of Calcutta in the matters which had come before the Supreme Court in the civil appeals on the principle that the sale held in contravention of the provisions of S. 35 of the Bengal Act was a nullity and therefore no question of setting aside the sale within the meaning of O. 21, R. 90, C.P.C., would arise. The Supreme Court proceeded to examine the contrary view on the assumption that the said provision is a mandatory one. In more than one place, the Supreme Court made it clear that it is examining the question only on the assumption that the said provision is a mandatory one. On that assumption, the Supreme Cour examined the question as to whether the act done in breach of the mandatory provision is per force a nullity, without any qualification. As to how the question was raised and proceeded with, will be better understood, when the following passage in the pronouncement is adverted to: “This raises the question whether such a sale is a nullity. As to how the question was raised and proceeded with, will be better understood, when the following passage in the pronouncement is adverted to: “This raises the question whether such a sale is a nullity. If a provision of a statute is only directory, an act done in contravention of the provision is manifestly not a nullity. S. 35 of the Act is couched in a mandatory form and it casts in terms a duty on the court to comply with its provisions before a sale is held. Prima facie the provision is mandatory; at any rate, we shall assume it to be so for the purpose of these appeals. Even then, the question arises whether an act done in breach of the mandatory provision is per force a nullity.” The authorities throwing light on this aspect were adverted to by the Supreme Court and the contrary view was repelled by the Supreme Court observing: “Where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that S. 3S of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or, in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interest of the public, but the same cannot be said of S. 35 of the Act, which is really intended to protect the interests of a judgment debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualised when the judgment-debtor docs not seek to take advantage of the benefit conferred on him under S. 35 of the Act; for instance, if the part of the property carved out by the court for sale is separated from the rest of his property; the value of the remaining property may be injuriously affected by the said carving out in which case the judgment-debtor may prefer to have his entire property sold so that he may realise the real value of the property and pay part of the sale price towards the decretal amount. He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage. A provision intended for his benefit cannot be construed in such a way as to work to his detriment. But it is said that the proviso to S. 35 of the Act indicates a contrary intention. Under that proviso, ‘if the highest amount bid for the property so specified is less than the price so specified, the court may sell such property for such amount, if the decree-holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest bid and the price so specified. This is only an option given to the decree-holder; he may exercise this option, if he does not like to go through the entire sale proceedings over again. In one contigency this proviso also works for the benefit of the judgment-debtor, for he will be relieved of part of his indebtedness. But anyhow this does not show that the main provision is not intended for the benefit of the judgment-debtor. We are, therefore, satisfied, on a true construction of S. 35 of the Act, that it is intended only for the benefit of the judgment-debtor and, therefore, he can waive the right conferred on him under S. 35 of the Act. If that be the legal position, O. 21, R. 90, C.P.C. is immediately attracted.” 11. To sum up: The Executing Court had inherent jurisdiction to sell the property. It was assumed that S. 35 of the Bengal Act is a mandatory provision. While a directory provision can be waived, a mandatory provision can only be waived, if it is not conceived in the public interests, but in the interests of the party that waives it. To sum up: The Executing Court had inherent jurisdiction to sell the property. It was assumed that S. 35 of the Bengal Act is a mandatory provision. While a directory provision can be waived, a mandatory provision can only be waived, if it is not conceived in the public interests, but in the interests of the party that waives it. If the party can waive it, the breach of it will only be an irregularity and not a nullity. S. 3S of the Bengal Act is intended only for the benefit of the judgment-debtor and therefore he can waive it and hence a breach of S. 3S of the Bengal Act is not per force a nullity and O. 21, R. 90, C.P.C. will be immediately attracted. The entire discussion of this aspect was in the presumptive field and with the intention to repel the view contrary to the one expressed in the earlier part of the pronouncement by the Supreme Court. The categoric pronouncement of the Supreme Court is that noncompliance with the provisions of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C, and S. 35 of the Bengal Act would only amount to a material irregularity or defect in publishing or conducting the sale. The question of waiver was adverted to for the purpose of finding out whether S. 35 of the Bengal Act, assuming that it is mandatory, could be waived, so as to hold that the breach of it would only amount to an irregularity and not a nullity, attracting only O. 21, R. 90, C.P.C. Giving the answer in the affirmative, the position was examined in the context of an application under O. 21, R. 90, C.P.C. and since the judgmentdebtor in one of the matters did not file objections at all and in the other matter though he filed objections, did not attend at the drawing up of the proclamation, it was held that the sales are not liable to be set aside under the terms of O. 21, R. 90, C.P.C. As already noted by me, we are not called upon to answer the question of waiver in the context of an application under O. 21, R. 90, C.P.C. That is why I have refrained from giving any positive answer on this aspect. 12. 12. Per chance, it has to be assumed that the provisions of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C. are mandatory, as assumed by the Supreme Court with reference to S. 35 of the Bengal Act, then the question as to how far an act done in breach of the said provisions, is per force a nullity would arise. In that context, as to whether the judgment-debtor could waive the said provisions, may have to be examined. By applying the same ratio of the Supreme Court, it may be stated that the said provisions are intended for the benefit of the judgment-debtor and can waive them and a contravention of the said provisions would amount to an irregularity only. Then the position will have to be examined only in an application under O. 21, R. 90, C.P.C. As already noted, these questions in terms do not call for our specific answers, as per the terms of reference, and by any observation of mine as above, I should not be understood to have given answers for them. If from the pronouncement of the Supreme Court, guidance has got to be obtained, certainly that is available for any one to take them on the questions. 13. The second question referred for our answer speaks about the scope of the judgment in T.P.S. Reddi v. Padmavathamma 1. In that case, properties in two villages were proceeded against and brought to sale in execution. The sale of the properties in one village fetched a price, sufficient to satisfy the amount mentioned in the sale proclamation. Despite this fact, the Court proceeded to sell the properties in the other village. There was an application by the judgment-debtor to set aside the sale on various grounds, namely that the sale was vitiated by material irregularities, which caused serious prejudice to the judgment-debtor and that the properties sold by the court were valuable properties and the same were grossly undervalued in the sale proclamation. Finally, it was contended that the court should have stopped the sale, as required by the mandatory provisions of O. 21, R. 64, C.P.C. after the sale of the properties in the first village, instead of continuing the sale of the properties in the other village. The first court rejected the application of the judgment-debtor. Finally, it was contended that the court should have stopped the sale, as required by the mandatory provisions of O. 21, R. 64, C.P.C. after the sale of the properties in the first village, instead of continuing the sale of the properties in the other village. The first court rejected the application of the judgment-debtor. However, on appeal, the High Court accepted the pleas or the judgment-debtor and set aside the sale in respect of the properties in the other village. The matter was taken up to the Supreme Court by way of further appeal. It was argued on behalf of the auction-purchaser in respect of the properties in the other village, applicant before the Supreme Court, that the judgment-debtor did not raise any objection before the first court against continuing the sale of the properties in the other village. The two learned judges of the Supreme Court, who dealt with the matter, pointed out that the amount, as specified in the sale proclamation, was fully satisfied by the sale of the properties in the first village and the court should have stopped the sale of further items of properties and this is a logical corollary which flows from O. 21, R. 64, C.P.C. and under that provision the court derives jurisdiction to sell the properties attached only to the point at which the decree is fully satisfied; and where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further stage. With regard to the judgment-debtor not raising an objection on this ground before the Executing Court, it was observed: “The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the noncompliance with the provisions of O. 21, R. 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned.” In this view, the setting aside of the sale was upheld by the Supreme Court. This pronouncement of the Supreme Court was on the facts of that case and this pronouncement could not be understood to have militated against the principles discussed and settled by the pronouncement of the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1, with regard to a sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C, by selling more extent of property than necessary, not being her force a nullity. It has to be noted that in this latter pronouncement, the Supreme Court was examining the question in an application to set aside the sale on the ground of material irregularities. If latter pronouncement is to be understood the other way about, then the latter pronouncement being that of a smaller Bench of two learned Judges of the Supreme Court, will have to give way to the earlier ronouncement of a larger Bench of three earned Judges of the Supreme Court., 14. Then the question is as to whether in the pronouncements of this Court, referred to in Question No. 2, raised for our answer, it could be stated that there has been an incorrect interpretation of the scope of the pronouncement in T.P.S. Reddi v. Padmavathamm 2 in view of the pronouncement in Dhirendra Nath v. Sudhir Chandra 3. In Kumaraswami Gounder v. P.R. Ramaswamy Nadar and another 4, Ramanujam, J., dealt with a case where the decree dues amounted to Rs. 8000/and for the recovery of the said decree dues an extent of 21.21 acres of valuable cultivable lands were put to sale in execution and sold. The judgment-debtor filed an application under O. 21, R. 90, C.P.C, to set aside the sale. The Executing Court held that the property was sold for a low price because of material irregularities contained in the sale proclamation. The Executing Court also held that it is the duty of the court to group the lands into small and convenient plots and offer them for sale, so that it may be possible for men of ordinary means, especially the riots of the locality to purchase, instead of selling the entire block in one lot. In this view of the matter, the Executing Court set aside the sale. On appeal by the decree-holder, the order or the Executing Court, setting aside the sale, was confirmed. The matter came up before Ramanujam, J. by way of revision. In this view of the matter, the Executing Court set aside the sale. On appeal by the decree-holder, the order or the Executing Court, setting aside the sale, was confirmed. The matter came up before Ramanujam, J. by way of revision. It was contended before Ramanujam, J. that at every-stage the judgment debtor had notice of the proceedings and he not having raised any objection either with regard to the price or to the sale of the property in one lot, it is not open to him after the sale of the property to file an application under O. 21, R. 90, C.P.C, merely on the ground that the property fetched a low price. The learned Judge found that the sale proclamation contained full of material irregularities and in view of those irregularities the property had not fetched fair price as a result of which the judgment debtor had been prejudiced considerably. In view of the findings that the sale proclamation contained various irregularities and the sale price fetched was abnormally low, having regard to the Amins valuation, the learned Judge opined that the sale had been rightly set aside by the courts below. On the question of excessive execution, the learned Judge opined that there was no justification for selling the entire lot of 21 acres and odd belonging to the judgment-debtor without making an attempt to divide the entire extent into two or three lots and sell the same one after the other and O. 21, R. 64, C.P.C., enables the court only to sale such portion of the judgment-debtors property as may be necessary to satisfy the decree and since a small portion of the judgment-debtors property if sold could have satisfied the decree and yet the entire holding of 21 acres and odd of the judgment-debtors property had been sold, considerable prejudice had been caused to judgment-debtor and in that context the learned Judge held there was excessive execution, which is prohibited by O. 21, R. 64, C.P.C. The learned Judge has not referred to any pronouncement, much less the pronouncement of the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1 or in T.P.S. Reddi v. Padmavaihamma 2 . I can only construe the decision of the learned Judge as having been rendered, taking note of the facts and circumstances of the case dealt with by him and not on interpretation of any pronouncement of the Supreme Court. 15. In Subba Naicker v. Durai Raj 3, G. Maheswaran, J. dealt with a case, where the decree-holder to realise a sum of Rs. 7126.15 attached three items of properties worth about more than Rupees One Lakh of the judgment-debtor and the first court ordered sale of the properties, notwithstanding the fact that it was brought to its notice that for a decree debt of Rs. 7126,15, properties worth several lakhs cannot be Drought to sale. The learned Judge found that the first court had not applied the provisions of O. 21, R. 64, C.P.C, which go to the root of the matter of jurisdiction, and this Court had necessarily to interfere with the order passed by the first court. The learned Judge did refer to the pronouncement of the Supreme Court in T.P.S. Reddi v. Padvathamma 2. The facts of the case, as we could see from the order of the learned Judge, do disclose that there was a protest of excessive execution, being resorted to, and in spite of that protest, the sale was ordered and that was rectified by the learned Judge. I am not able to say that this decision of the learned Judge has in any way ignored the principles set down in Dhirendra Nath v. Sudhir Chandra by construing the scope of the judgment in T.P.S. Reddi v. Padmavathamma 2 in an incorrect manner. 16. In L. Balu v. Periasami and others 4, Padmini Jesudurai, J. dealt with a case, where a complaint was raised by the judgment-debtor that there was excessive execution in violation of O. 21, R. 64, C.P.C. The suit was for recovery of Rs. 99,275/with future interest and it was decreed. In execution, three items of properties were brought to sale. After giving credit to the amount paid by the judgmentdebtor, there remained a balance of Rs. 1,00,425/to be realised. All the three items were brought to sale. Item No. 1 was sold for Rs. 1,15,000/-. Thereafter, the sale of items 2 and 3 were held. In execution, three items of properties were brought to sale. After giving credit to the amount paid by the judgmentdebtor, there remained a balance of Rs. 1,00,425/to be realised. All the three items were brought to sale. Item No. 1 was sold for Rs. 1,15,000/-. Thereafter, the sale of items 2 and 3 were held. The learned Judge adverted to T.P.S. Reddi v. Padmavathamma 2, the facts of the case dealt with by the learned Judge being more or less similar to the facts of the case dealt with by the Supreme Court, namely, after the sale of one item fetching a price sufficient to satisfy the decree dues outstanding then, sale of further items was proceeded With, and in that context the learned Judge deemed fit to hold that there was excessive execution in violation of O. 21, R. 64, C.P.C. I do not get any indication from the order, that the learned Judge dealt with a contention that since the judgment-debtor did not raise any objection with regard to excessive execution before the Executing Court, he is precluded from raising it subsequently. This case also must be held to have been decided on its own facts. Thus, I am obliged to hold that the pronouncements of this court, referred to in Question No. 2, placed for our answer have come to be rendered on the peculiar facts and circumstances of the case dealt with by the respective learned Judges and they should not be understood to have incorrectly interpreted any pronouncement of the highest Court in the land. 17. In any event, the principles to govern the contigencies have been now adverted to and expatiated in the light of the pronouncements of the highest Court in the land by giving the present answers to the reference, and certainly they shall form the guidance and govern the questions as and when they arise. The answers, which I propose to and give for the questions in the reference before us are: 1. A court-auction sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C, by selling more extent of property than necessary is not a nullity. 2. Such a contravention could be the subject matter of grievance if there is a warrant for it in an application under O. 21, R. 90, C.P.C. 3. A court-auction sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C, by selling more extent of property than necessary is not a nullity. 2. Such a contravention could be the subject matter of grievance if there is a warrant for it in an application under O. 21, R. 90, C.P.C. 3. The participation of the judgment-debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale may be relevant for the purpose of deciding the application under O. 21, R. 90, C.P.C, and such conduct on the part of the judgment-debtor may also be viewed as a waiver of the provisions of the requirements of O. 21, R. 64 and O. 21, R. 66(2) (a), C.P.C. 4. The pronouncements of this Court in (i) Kumaraswami Gounder v. P.P. Ramaswamy Nadar and another (C.R.P. No. 2467 of 1979-concisely reported in 1980 TLNJ 47): (ii) Subba Naicker v. Durai Raj (98 L.W. 352=1985-2-MLJ 123) and (iii) L. Balu v. Periasami and others 1 have come to be rendered on the peculiar facts and circumstances of the cases dealt with by the respective learned Judges and they should not be understood to have, incorrectly interpreted any pronouncement of the highest Court in the land. 5. In any event, the principles to govern the contigencies have been now adverted to, and expatiated in the light of the pronouncement of the highest court in the land by giving the present answers to the reference and certainly they shall form the guidance and govern the questions as and when they arise. Now answers have been given to the questions referred, the Civil Revision Petitions shall go before the learned single Judge, who deals with Civil Revision Petitions, for adjudication on merits. K.M. Natarajan, J.: I agree with Nainar Sundaram, J. Bellie, J.: The primordial point that calls for decision in this reference to the Full Bench by a single Judge is: What will be the legal effect of a Court auction sale when an extent of property is sold and that extent is more than the extent of property that will be sufficient if sold to satisfy the decree? The relevant provisions of law in this regard is O. 21, Rr. 64 and 66, C.P.C. 2. The relevant provisions of law in this regard is O. 21, Rr. 64 and 66, C.P.C. 2. To well appreciate the point a brief reference to the facts of the case that led to the reference may be made. In E.P. No. 2198 of 1978 on the file of X Assistant Judge, City Civil Court, Madras, the decree-holder brought the property of the judgment debtor which is a house with 6 grounds and 30 sq.ft. of land for sale. The amount payable under the decree was Rs. 11,083.92. The upset price of the property was fixed at Rs. 8,00,000/which was later reduced to Rs. 6,00,000/-. At the instance of the judgment debtor and on payment of Mm of amounts in instalments the sale was adjourned several times and finally the Court refusing to further adjourn the sale held the auction on 22.12.1981. The property was sold for Rs. 6,02,000/-. Thereafter the judgment debtor filed a petition E.A. No. 415 of 1982 under O. 21, R. 90, C.P.C, to set aside the sate alleging among others that the provisions of O. 21, Rr. 65 to R. 68, C.P.C, were not complied with and the sale is vitiated. This application was resisted by the decree-holder as well as the auction purchaser contending that in spite of notice to him and himself appearing in the matter the judgment-debtor did not raise any objection as to any noncompliance of the provisions of O. 21, Rr. 65 to R. 68, C.P.C., and that every requirement of law has been satisfied and therefore there is o ground for setting aside the sale. The Court negatived the allegation of the judgment-debtor and dismissed the petition. As against this order the judgment-debtor preferred an appeal in C.M.A. No. 337 of 1984 before the learned II Additional Judge, City Civil Court, Madras. The learned Judge concurred with the executing Court on most of the findings, but on the only ground that the sale of the entire property was not justified and only a portion of the property should have been sold and hence the sale is against the provisions of O. 21, R. 64, C.P.C, and therefore the sale is without the jurisdiction of the Court and therefore even though the judgment-debtor has not raised any objection in this regard before sale, the sale has to be set aside, he allowed the appeal. To come to the conclusion that the sale of the entire property was invalid the learned judge relied on the decision of the Supreme Court in T.P.S. Reddi v. Padrnavathamma 1 which has been followed by this Court in Kumaraswamy Gounder v. P.P. Ramaswamy Nadar 2. On the side of the decree-holder and auction purchaser another Supreme Court ruling in Dhirendra Nath v. Sudhir Chandra 3 was cited but the learned Judge held that this decision is inapplicable to the present case. Against this Judgment in C.M.A. the auction purchaser filed C.R.P. No. 1027 of 1986 and the decreeholder filed C.R.P. No. 2351 of 1986. 3. On behalf of the decree-holder and auction purchaser in the C.R.Ps., it was argued before the learned single Judge that the learned Judge in the C.M.A. has misconstrued the decision in T.P.S. Reddi v. Padrnavathamm 1 in holding that the decision lays down that if excess property is sold than it is necessary it would affect the jurisdiction of the Court and therefore the Court auction is void even if the judgment-debtor has not raised any objection in that regard. It was submitted that nowhere in that decision it has been held so. After considering the facts of that case the learned single Judge found that the decision will not apply to a case where a single item of property has been sold without any objection having been raised by the judgment-debtor. Then the learned single Judge considered three decisions rendered by this Court viz.,(1) Kumaraswamy Gounder v. P.P. Ramaswamy Nadar 2 Subba Naicker v, Durai Raj 4 and (3) L. Balu v. Periasami and 3 others 5 all relied on by the judgment-debtor. According to the learned single Judge in all those decisions on interpretation of the said decision of the Supreme Court it has been held that when a property has been sold in excess of the extent necessary to satisfy the decree amount that would be against the provisions of O. 21, R. 64 and it is a matter which goes to the root of the jurisdiction of the Court and therefore the sale is a nullity and hence liable to be set aside even in the absence of the judgment-debtors objections. But according to the learned single Judge such a view cannot be taken on the interpretation of the Supreme Court decision i.e., T.P.S. Reddi v. Padrnavathamma Then the learned single Judge referred to the earlier Supreme Court decision in Dhirendranath v. Sudhir Chandra 3 wherein with reference to S. 35 of Bengal Money Lenders Act it has been held to the effect that when a single item of property has been sold in Court auction and the judgment-debtor has not taken any objection the sale is not liable to be set aside. In these circumstances the learned single Judge observing that the point is an important one and therefore it is better to be decided by a Division Bench or Full Bench, referred the matter with two questions formulated as follows:— 1. Whether a Court auction sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2)(a) of C.P.C., by selling more extent of property than necessary is a nullity being a sale without jurisdiction even in cases where the judgment-debtor had participated in the settlement of proclamation and did not raise any objection for the extent of property brought for sale? 2. In view of the decision of the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1, whether the decisions in Kumaraswamy Gounder v. P.P. Ramaswamy Nadar 2, in Subba Naicker v. Durai Raj 3, and in L. Balu v. Periasami 4 have correctly interpreted the scope of the Judgment in T.P.S. Reddi v. Padmavathamma? 5 4. As stated above at the outset, the main point that has to be considered is, what will be the legal effect if in execution of a decree an extent of property is sold which is more than the extent of property that would be enough to realise the decree amount. The law as to this is stated in O. 21, R. 64, C.P.C., which, with Madras amendment, reads as follows:— “Any Court executing a decree may, after notice to the decreeholder and judgment-debtor, order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. Then O. 21, R. 66 relates to proclamation of sale. Then O. 21, R. 66 relates to proclamation of sale. As per this, as amended by Madras, the proclamation shall be settled in Court after notice to the decree holder and the judgment-debtor except in cases where notices have already been sent under O. 21, R. 64. In this connection it may be noted that in O. 21, R. 66 as it stands without Madras amendment there is a proviso which reads thus: “Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under R. 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs.” R. 54 relates to attachment of immovable property and according to this Rule, “Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.” From these provisions it is seen that the judgment-debtor would be given notice either under O. 21, R. 54 under O. 21, R. 64 or under O. 21, R. 66. Now as per O. 21, R. 64 the Court may order sale of any property attached by it and liable to sale or such portion of the property of the judgment-debtor as may seem necessary to satisfy the decree. In this position of the law under Order 21, Rules 54, 64 and 66 we have to see whether in a given case it can be said that there is noncompliance of O. 21, R. 64 when an extent of property is sold which is more than such portion of the property necessary to be sold. When it is said “such portion” it may mean a portion of one item of property attached or one or more of two or more items of properties attached. In the case where more than one item of property is attached the properties can be sold item by item or in convenient plots. But difficulty arises when the property attached to be sold is only one item and it is relatively large. 4. In the case where more than one item of property is attached the properties can be sold item by item or in convenient plots. But difficulty arises when the property attached to be sold is only one item and it is relatively large. 4. The Question is when the property attached to be sold is only one large item, is it the duty of the Court to carve out a portion thereof that would be sufficient to satisfy the decree and sell it? In this connection it must be noted that in R. 64 itself, as stated above, it is provided that only after notice to the judgment-debtor (and the decree-holder) the sale can be ordered. As further seen above, as per clause(2) of R. 66, as amended in Madras, the terms of sale proclamation shall be settled in Court after notice to the decree-holder and judgmentdebtor except in cases where notices have already been served under O. 21, R. 64. It is contended on behalf of the decree-holder and auction purchaser that when the property is a single item no question of carving out any portion thereof arises whereas on behalf or the judgment-debtor it is pleaded that even in the case of a single item of property when it is relatively large the Court must fix a portion that would be sufficient to satisfy the decree and that portion alone should be sold and if instead the entire property is sold such sale will be without the jurisdiction of the Court, and as such the sale will be a nullity. In my view the Judgment of the Supreme Court rendered by three Judges. Bench in Dhirendra Nath v. Sudhir Chandra 1 gives answer to this. In that case a petition was filed under O. 21, R. 90, C.P.C., by the judgment-debtor for setting aside the sale for non-compliance with S. 35 of Bengal Money Lenders Act, hereinafter referred to as ‘the Act’. Bench in Dhirendra Nath v. Sudhir Chandra 1 gives answer to this. In that case a petition was filed under O. 21, R. 90, C.P.C., by the judgment-debtor for setting aside the sale for non-compliance with S. 35 of Bengal Money Lenders Act, hereinafter referred to as ‘the Act’. That S. 35 reads as follows:— “Notwithstanding anything contained in any other law for the time being in force, the proclamation of the intended sale of property in execution of a decree passed in respect of a loan shall specify only so much of the property of the judgmentdebtor as the Court considers to be saleable at a price sufficient to satisfy the decree, and the property so specified shall not be sold at a price which is less than the price specified in such proclamation; Provided that, if the highest amount bid for the property so specified is less than the price so specified, the Court may sell such property for such amount, if the decreeholder consents in writing to forego so much of the amount decreed as is equal to different between the highest amount bid and the price so specified.” Admittedly in that case S. 35 of the Act was not complied with. It was contended on behalf of the judgment-debtors that the sale held in contravention of the provisions of S. 35 of the Act was liable to be set aside under O. 21, R. 90, C.P.C. On the other hand on behalf of the opposite side it was argued that the noncompliance of the provisions of S. 35 was only an irregularity in publishing or conducting the sale and a party who received the notice of proclamation but did not attend at the drawing-up of proclamation or did not object to the said defect or irregularity he had sustained substantial injury. The Supreme Court found on this point a divergence of views reflected in the decisions cited at the Bar. But it agreed with the view expressed by a Division Bench of the Calcutta High Court in Manindra Chandra v. Jagadish Chandra 2 . The Supreme Court found on this point a divergence of views reflected in the decisions cited at the Bar. But it agreed with the view expressed by a Division Bench of the Calcutta High Court in Manindra Chandra v. Jagadish Chandra 2 . In that decision Chakravarthi, J. who delivered the judgment lias stated as follows:— It (S. 3S of the Act) is a provision relating to the contents of the sale proclamation and its effect, to my mind, is to amend or supplement O. 21, R. 66(2)(a) which directs the court to specify in the sale proclamation “the property to be sold”. Any objection regarding non-compliance with S. 35 in specifying the property to be sold is, in my view, a defect in the sale proclamation within the meaning of the second proviso to O. 21, R. 90, C.P.C. It follows that an objection that the sale proclamation did not conform to S. 35 of the Bengal Money-Lenders Act cannot avail a judgment-debtor in an application under O. 21, R. 90, if he was present at the drawing up of the sale proclamation and did not raise any such objection at the time, nor can it avail a judgment-debtor who, after receiving notice did not attend at the drawing up of the sale proclamation at all.” Therefore according to the Supreme Court, if the judgment-debtor was present at the time of the sale proclamation and did not raise any objection regarding non-compliance with S. 35 or if the judgment-debtor even after receipt of notice was not present at the drawing up of the sale proclamation, he cannot later under O. 21, R. 90 raise any such objection. Here it may be noted that in O. 21, R. 90 itself, in clause (3) it has been specifically provided that, “No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.” In our case, on a reading of R. 66 as amended in Madras, it cannot be said that there is any defect in the sale proclamation. The point is, is there any non-compliance with R. 64. The point is, is there any non-compliance with R. 64. If more than one item of property is attached to be sold, even if the judgment-debtor has not stated anything as to what is the extent of the property necessary to be sold, when the items are sold one after another and when any one item is sold or more items are sold and the sale proceeds thereof covers the decree amount, then the rest of the items need not be sold. If such further items are also sold in the auction then certainly those sales are unnecessary and unwarranted and without jurisdiction because enough amount to satisfy the decree amount has already been realised. In such cases certainly there will be a contravention of R. 64 since the sale will be exceeding the extent of property necessary to be sold to realise the decree amount. In such cases no question of raising any objection by the judgment-debtor arises. But when the property to be sold is a single item and if any portion thereof would be sufficient to satisfy the decree and the judgment-debtor to whom notice of sale has been sent as required under O. 21, R. 64 states so, then undoubtedly the Court would have to consider that statement of his. If in spite of that statement the Court proceeds with the sale of the entire item and the value of the property is large compared to the decree amount, then there is no doubt there is infringement of the provisions of R. 64. There is nothing indicating in the Rule that the Court itself, even though the judgment-debtor does not state anything, should ascertain if any portion of the property would be sufficient to satisfy the decree. The judgment-debtor might-keep quite because he might think that it would be advantageous to him if the entire property is sold rather than a portion of it. Therefore if the judgment-debtor does not raise any voice as regards the extent of the property to be sold he cannot later raise any objection of non-compliance with R. 64. The judgment-debtor might-keep quite because he might think that it would be advantageous to him if the entire property is sold rather than a portion of it. Therefore if the judgment-debtor does not raise any voice as regards the extent of the property to be sold he cannot later raise any objection of non-compliance with R. 64. We have seen above, the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1 has accepted the reasoning that an objection that the sale proclamation did not conform to S. 35 of the Bengal Money Lenders Act cannot avail a judgment-debtor an application under O. 21, R. 90 if he was present at the drawing up of the sale proclamation and did not raise any such objection at the time, nor can it be availed of by a judgmentdebtor who after receiving notice was not present at the drawing up of the sale proclamation at all. This reasoning would certainly apply to the judgment-debtor who has received notice under O. 21, R. 64 but has not raised any objection as to the extent of the property to be sold. A reading of S. 35 of the Bengal Money Lenders Act extracted above will show that it is couched in a strict language for it states to the effect that the proclamation of sale shall specify only so much of the property or the judgment-debtor as the Court considers to be saleable at a price sufficient to satisfy the decree. The Supreme Court itself states, “S. 35 of the Act is couched in a mandatory form and it cuts in terms a duty on the court to comply with its provisions before a sale is held.” That is not the case with R. 64. The language used in it is certainly not so mandatory as in S. 3S of the Bengal Money Lenders Act, and there is no express duty cast on the Court. Therefore considering what the Supreme Court has said with regard to S. 35 of the Bengal Money Lenders Act we can safely hold that in the case of one single item of property, if the judgment-debtor has not said anything as to the extent necessary to be sold to satisfy the decree even after receipt of notice under R. 64, he cannot later complain of non-compliance with R. 64. If he has not received any notice that will be a different matter and the entire proceedings would be vitiated. It can be further held that there is no duty cast on the Court to ascertain itself any portion of the property necessary to be sold to satisfy the decree. But if it appears to the Court apparently from the records that the sale of a portion of the property only is necessary to satisfy the decree, then the Court if there is no objection from the judgment-debtor and no valid objection from the decree-holder, sell that portion of the property alone. Before the Supreme-Court, in Dhirendra Nath v. Sudhir Chandra 1 it was also argued that the sale without compliance, with S. 35 of the Bengal Money Lenders Act was a nullity. To this the Supreme Court said that though prima facie the provision is mandatory the provision is intended simply for the benefit of the judgment-debtor and no public interest is involved and such benefit can be waived by the party concerned and therefore non-compliance with S. 35 will not render the sale a nullity. This being the case, a fortiori, any non-compliance with R. 64 cannot at all render the sale a nullity. 5. The later decision of the Supreme Court relied on by the judgment-debtor i.e., T.P.S. Reddi v. Padmavathamma 2 does not in any way go against the proposition of law laid down by its earlier decision i.e., Dhirendra Nath v. Sudhir Chandra , In this case two properties, one in Devanoor village and another in Gudipadu, were attached by the judgmentdebtor. In the sale proclamation the decretal amount has been mentioned as Rs. 16,715.50. First the land in Devanoor village was sold and it fetched a sum of Rs. 16,880/-. This amount itself was sufficient to satisfy the decree amount. Despite this fact the Court proceeded to sell the properties in Gudipadu and it was sold for Rs. 12,500/-. It was contended by the judgment-debtor that once the sale of the property in Devanoor was sufficient to satisfy the amount mentioned in the sale proclamation, the Court should not have proceeded with the sale of the property in Gudipadu and this sale of the property in Gudipadu is against the mandatory provisions of O. 21, R. 64, C.P.C. The Supreme Court accepted this contention. Quoting the provisions of O. 21, R. 64 the Supreme Court said that, “Under this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words “necessary to satisfy the decree” clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage.” It was contended on behalf of decree-holder in that case that there was another decree against the judgment-debtor, but the Supreme Court rejected this contention saying that there is nothing to show that the decree-holder had approached the Court to include the second decretal amount in the proclamation of sale. In these circumstances the Supreme Court stated that the fact that the judgment debtor did not raise any objection on this ground before the executing court is not sufficient to put him out of court because this was a matter which went to the very root of the jurisdiction of the executing Court to sell the properties and the non-compliance with the provisions of O. 21 R. 64 of the Code was sufficient to vitiate the sale so far as to properties situate in village Gudipadu were concerned. Thus this Supreme Court decision is not a case concerning one item of property sold. Certainly out of two items of properties attached when sale of one item was sufficient to satisfy the decree, it is but natural that the other property shall not be sold. The sale of other property is unwarranted and unnecessary. Therefore such sale is without jurisdiction and hence it is vitiated. It appears to me, even without O. 21, R. 64 that would be the position even from the common sense point of view. Therefore this ruling of the Supreme Court cannot be taken to be universally applicable to all cases where the extent of property sold is more than the extent of property that would be necessary to satisfy the decree. 6. Therefore this ruling of the Supreme Court cannot be taken to be universally applicable to all cases where the extent of property sold is more than the extent of property that would be necessary to satisfy the decree. 6. Coming to the three Judgments of this Court relied on by the decree-holder and auction purchaser, and referred to by the learned single Judge as detailed above, in Subba Naicker v. Durairaj 1 there are three items of properties. The decree amount realisable is Rs. 7,126/-. The judgment-debtor has given the value of the suit properties as Rs. 20,000/-, Rs. 4,500/and 3,500/-; and the Amin has given the value as Rs. 66,800/-, Rs. 28,000/and Rs. 22,800/-. In these circumstances, there is no doubt that all the properties shall not be sold because the sale of one property alone would be sufficient to satisfy the decree. Therefore referring to the Supreme Court decision in, T.P.S. Reddi v. Padmavathamma 2 , Maheswaran, J. has rightly set aside the sale and directed sale of the third item first and if the sale proceeds is not sufficient then the second item. In L. Balu v. Periasami and 3 others 3 the amount to be realised was Rs. 1,07,425/-. First item was sold for Rs. 1,15,000/-. This amount itself was more than sufficient to pay off the decree amount. But the Court proceeded with the sale of items 2 and 3 also. In these circumstances Padmini Jesudurai, J. held that when the sale of the first item itself was enough to discharge the decree amount, second and third items ought not to have been sold and the sale of those items are without jurisdiction of the Court, and referring to the said Supreme Court decision in T.P.S. Reddi v. Padmavathamma 4 the learned Judge rightly set aside the sale as regards items 2 and 3. In Kumaraswami Gounder v. P.P. Ramaswamy Nadar 1 the property attached was 21.21 acres of agricultural land. The amount recoverable in the execution was Rs. 8,000/-. The Amin has valued the property at Rs. 30,000/(earlier the execution was taken in Sub Court, Coimbatore where the Amin had valued the property at Rs. 1,20,000/but there was no further proceedings and latter the execution was proceeded in Sub Court, Udumalpet, and there the Amin valued the property at Rs. 30,000/-). The property has been sold for Rs. 21,050/-. The Amin has valued the property at Rs. 30,000/(earlier the execution was taken in Sub Court, Coimbatore where the Amin had valued the property at Rs. 1,20,000/but there was no further proceedings and latter the execution was proceeded in Sub Court, Udumalpet, and there the Amin valued the property at Rs. 30,000/-). The property has been sold for Rs. 21,050/-. According to Ramanujam, J. even assuming the value of the property is Rs. 30,000/-, the entire 21.21 acres ought not to have been sold because even one-third of the property would have been enough to satisfy the decree and therefore the sale infringes O. 21, R. 64 and is liable to be set aside. With respect I am unable to agree with the learned Judge. The judgment-debtor has never objected to the entire property being sold. Having thus kept quite, after the sale he cannot complain that only a portion of the property should have b een sold. May be purposely the judgment-debtor did not raise any objection because he thought the sale of the entire property would be more advantageous to “him. In the case of a single item of property the Court cannot be expected to inquire into and make calculations, of its own, even if the judgment-debtor does not say anything, and find out how much extent of the property is sufficient to satisfy the decree. Hence I hold that this decision is not good law. 7. Here, before us, Mr. R.S. Venkatachari, learned counsel for the judgment-debtor cited some more decisions. But I do not think that any of them would help him. He read out the decision in Rukmaniammal v. Subramania Sastrigal and another 2 . This relates to O. 21, R. 66(2)(e), and referring to mis-description of properties in the sale proclamation it is stated that drawing up of the proclamation is the duty of the Court. Therefore this decision has nothing to do with O. 21, R. 64 and the sufficiency of the extent of the property to be sold. The next decision relied on is Rangaswami Ayyangar and others v. K. Marudanayagam Pillai and others 3 . Here again the decision deals with O. 21, R. 66 and not O. 21, R. 64. Therefore this decision has nothing to do with O. 21, R. 64 and the sufficiency of the extent of the property to be sold. The next decision relied on is Rangaswami Ayyangar and others v. K. Marudanayagam Pillai and others 3 . Here again the decision deals with O. 21, R. 66 and not O. 21, R. 64. It was held that it is the duty of the Court to group the lands in small and convenient plots and offer them for sale rather than in plots of several fields comprising large extents. I do not think that this decision is relevant as regards the sufficiency of the extent of the property to be sold. The third decision is M/s. Shalimar Cinema v. Bhasin Film Corporation and another 4. Here too it is generally stated that the Court has a duty to see that the requirement of O. 21, R. 66 is complied with. I do not see any relevancy of this Judgment also. It is brought to our notice a Division Bench Judgment in Nadaraja Nadar v. Noor Ahmed 5 to which I was a party. In this case a cinema theatre with all superstructures, doors,, windows and amenities, projector, rectifier, transformer and amplifiers, complete in running condition, was sold for recovery of Rs. 161,322.71. After the sale was held it was contended by the judgment-debtor that there was irregularity in adjournment of the sale date from the previous hearing date and thereby he has been greatly prejudiced. While considering this point the Court incidentally said, “There was Projectors, Rectifier, Transformer and Amplifier and in some places it is also mentioned about furniture. Whether these articles separately could not have been sold to realise the small amount of Rs. 16,000/is also to be taken into consideration in considering whether the judgmentdebtor could have suffered substantial injury in this case.” It is not definitely held that only a part of the property should have been sold and if that had not been done the sale is illegal. Further the cinema theatre has been attached and sold as one unit in running condition. The said projectors, Rectifiers, Transformers, Amplifiers and furnitures are all movable properties. But we are now dealing with only the immovable property. Hence I do not think that the judgment-debtor can derive any support from this judgment. Further the cinema theatre has been attached and sold as one unit in running condition. The said projectors, Rectifiers, Transformers, Amplifiers and furnitures are all movable properties. But we are now dealing with only the immovable property. Hence I do not think that the judgment-debtor can derive any support from this judgment. Another Judgment by one of us (K.M. Natarajan, J.) viz., Ramasamy Gounder v. Lakshmi and others 1 is read out to us. In this Judgment the judgment-debtors undivided half share in the property was directed to be proclaimed and sold in Court auction. It was contended by the judgment-debtor that the value of the half share as per the Amins report is Rs. 3,00,000/whereas the amount that was realisable in the execution was only Rs. 29,730.15 and therefore the sale of the entire half share was unnecessary and it infringes O. 21, R. 64. Accepting this contention the learned Judge has directed the execution Court to order, proclaim and sell 1/4 share instead of 1/2 share of the judgment-debtor first and if the sale amount is not sufficient to cover the decree amount then the sale of the other 1/4 share. In this Judgment the learned Judge has mainly relied on the decision in T.P.S. Reddi v. Padmavathamma 2. The other Judgment of the Supreme Court viz., Dhirendra Nath v. Sudhir Chandra 3 has not been brought to the notice of the learned Judge. In these circumstances I do not think that this Judgment would be of much assistance to the first respondent-judgment debtor. 8. The other Judgment of the Supreme Court viz., Dhirendra Nath v. Sudhir Chandra 3 has not been brought to the notice of the learned Judge. In these circumstances I do not think that this Judgment would be of much assistance to the first respondent-judgment debtor. 8. In the result, from my foregoing discussion of the matter, the following propositions of law would emerge:— “i. In the case of a single property of the judgment-debtor which is brought to sale, if the judgment-debtor after receipt of the sale notice does not plead anything in respect of the extent of the property that would be sufficient to meet the amount to be realised in the execution proceedings, he cannot, after the property is sold, object to the sale contending that the entire property is more than the extent necessary to be sold and therefore the provisions of O. 21, R. 64, C.P.C. is infringed and the sale is liable to be set aside; ii Such a sale is not a nullity; iii Even if the judgment-debtor does not plead that lesser extent of property would be sufficient to realise the decree amount, if it prima facie appears to the Court that a lesser extent would be sufficient, then if there is no objection from the judgment-debtor and no valid objection from the decree-holder such lesser extent of property can be sold; iv. If two or more items of properties are attached for sale those properties can be sold one by one and when any one or more properties is/are sold and the sale proceeds thereof covers the decree amount then the remaining properties shall not be sold. If the Court considers it expedient to sell the properties in one or more lots and orders so, if the judgment-debtor makes no objection for the sale, he cannot later assail the same stating that the properties ought not to have been sold in one lot or lots. v. The above-said four propositions of law has to be applied in the case of a share or shares of the judgment debtor attached in the property.” 9. The reference is accordingly answered. v. The above-said four propositions of law has to be applied in the case of a share or shares of the judgment debtor attached in the property.” 9. The reference is accordingly answered. [After the Opinion of the Full Bench was expressed the case was posted before Venkataswami, J. for disposal, and he delivered the following Judgment:—] JUDGMENT 2nd April 1991 — Venkataswamy, J. These two Civil Revision Petitions arise out of an order of the executing Court in E.A. No. 415 of 1982 in E.P. No. 2198 in O.S. No. 4491 of 1974 on the file of the court on 10th Assistant Judge, City Civil Court, Madras. Factually, these two Civil Revision petitions are immediately directed against a judgment in C.M.A. No. 337 of 1984, on the file of the II Additional Judge, City Civil Court, Madras, which (C.M.A.) was directed against the order in the said E.A. No. 415 of 1982. 2. E.A. No. 415 of 1982 was filed by the defendant/judgment debtor, the first respondent in both the C.R.Ps. under O. 21, R. 90 read with S. 151 of the Code of Civil Procedure, to set side the court auction sale held on 22.12.1981. The executing court dismissed the said E.A. No. 415 of 1982. Aggrieved by that, the defendant/judgment debtor preferred C.M.A. No. 337 of 1984. The learned Appellate Judge allowed the appeal holding that the sale was in violation of O. 21, R. 64, C.P.C. and consequently set aside the sale. Aggrieved by that order of the Appellate Judge, the plaintiff/decree holder has filed C.R.P. No. 2351 of 1986 and the court auction purchaser has filed C.R.P. No. 1027 of 1986. 3. Before narrating the facts, the property that was sold in court auction may be noted down. The property bears old No. 15, New No. 8 Nowroji Road. Chetput, Madras, measuring an extent of 6 ground 30 sq.ft. with a pucca house constructed on it (hereinafter referred to as ‘the suit property’). For the sake of convenience, hereinafter the petitioner in C.R.P. No. 1027 of 1986 will be referred to as ‘the court auction purchaser’, the petitioner in C.R.P. No. 2351 of 1986 will be referred to as the decree holder and the first respondent in both the Civil Revision petitions will be referred t o as the judgment debtor. 4. I propose to set out the facts a little elaborately. 5. 4. I propose to set out the facts a little elaborately. 5. The decree-holder filed a suit in O.S. No. 4491 of 1974 in the City Civil Court for recovery of a sum of Rs. 10,865-50 P. and obtained a decree for a sum of Rs. 7846/with costs of Rs. 1,27457P on 7.11.1977. The decree was put into execution by the decree holder by filing E.P. No. 2198 of 1978. As per the execution petition, the amount claimed was Rs. 12,867-57P. The decree holder prayed the Court for an order of attachment and sale of the suit property to enable him to realise the decree amount. The su it property was attached on 23.11.1978, and for sale papers, it was adjourned to 29.1.1979. Subsequently sale papers were filed and after some adjournments, on 8.4.1980, the following order was passed:— “Notice given. Order pronounced. In the result, S.O.P.(settlement of Proclamation) 27.6.80 (vide separate sheet).” Note: — In the records, the separate sheet mentioned above is not found). On 27.6.1980 the judgment debtors value was noted as Rs. 7 lakhs. The Court directed to proclaim and sell on 11.8.1980. By filing E.A. No. 4272 of 1980, the judgment debtor got the sale adjourned to 25.8.1980. On 25.8.1980, the judgment debtor again filed E.A. No. 4565 to 1980 and got the sale adjourned to 2.9.1980. On 2.9.1980, the judgment debtor again filed E.A. No. 4718 of 1980 and got the sale adjourned to 1.10.1980. On 1.10.1980, the judgment debtor again in 1980, but that was dismissed, and the court adjourned the sale to 8.10.1980. On 8.10.1980, the auction was held. But these were no bidders. The Court directed for settling fresh proclamation, before proceeding with the sale. The decree holder filed E.A. No. 5790 of 1980 for fixing upset price. That was ordered on 27.1.1981 by fixing the upset price at Rs. 8 lakhs, and the Court directed the sale by publication and reclamation by 25.3.1981. On 25.3.1981, the judgment debtor filed E.A. No. 1687 for 1981 and got the sale adjourned to 24.4.1981; On 24.4.1981 he filed again E.A. No. 2511 of 1981 and got the sale adjourned to 25.6.1981. On 25.6.1981, E.A. No. 2985 of 1981 was filed and the sale was adjourned to 25.7.1981. On 25.7.1981, he again filed E.A. No. 3579 of 1981 and got the sale adjourned to 24.8.1981. On 25.6.1981, E.A. No. 2985 of 1981 was filed and the sale was adjourned to 25.7.1981. On 25.7.1981, he again filed E.A. No. 3579 of 1981 and got the sale adjourned to 24.8.1981. On 24.8.1981, the auction was held, but there were no bidders. In the circumstances, the decree holder filed E.A. No. 4288 of 1981 to reduce the upset price which was ordered on 12.10.1981. The Court reduced the upset price to Rs. 6 lakhs. The sale was ordered by publication and proclamation by 25.11.1981. On 25.11.1981, the judgment debtor filed E.A. No. 5989 of 1981 undertaking to pay the decree amount and got the sale adjourned to 22.12.1981. ON 22.12.1981, again the judgment debtor filed E.A. No. 6624 of 1981 and attempted to get the sale adjourned, but the application was dismissed. Hence the sale was held the auction purchaser was declared as the successful bidder for Rs. 6,02,000/-. It may be mentioned that on some occasions, while filing petitions to get the sale adjourned, the judgment debtor paid small amounts. It may also be mentioned that he waived fresh proclamation. 6. The judgment-debtor, after his failure in the attempt to get the court auction sale adjourned and as a result of which the sale was held, filed E.A. 415 of 1982 under O. 21, R. 90 read with S. 151 of the Code of Civil Procedure and prayed the court to set aside the sale held on 22.12.1981 in E.P. No. 2198 of 1978. The main allegations made in support of the petition are, that the provisions of O. 21, Rules 65 to 68 of the Code of Civil Procedure have not been complied with, that the sale of the property is vitiated by several grave and material irregularities resulting in substantial injury and loss to the judgment debtor, that the judgment debtor did not have proper notice of the settlement of proclamation or sale, that there was no proclamation at the house and premises of the suit property, nor at any place in the nearby area as required by law, that there was no reason for fixing the upset price at a low sum of Rs. 6,00,000/when the market value is more than Rs. 25,00,000/-. The upset price fixed by the Court was without proper assessment of the value of the property, and that no valuation of the property was given by the decree-holder. 6,00,000/when the market value is more than Rs. 25,00,000/-. The upset price fixed by the Court was without proper assessment of the value of the property, and that no valuation of the property was given by the decree-holder. This application was resisted both by the decree-holder and the auction purchaser, denying ‘all the allegations. 7. Before the executing Court, the petitioner examined himself as P.W. 1 and he also examined two other witnesses as P.Ws. 2 and 3. On the respondents side, the bailiff was examined as R.W.I and one Sankaran was examined on behalf of the decree-holder. The petitioner marked Exx. P-1 to P-3 on his side, whole on the respondents side Exx. R-1 to R-11 were marked, and Exx. C-1 and C-2 were marked as Court Exhibits. 8. The trial court, on a consideration of the pleadings, oral and documentary evidence and the rival submissions, held that the judgment debtor has given the value of the suit property as Rs. 7,00,000/-, that the bailiff, after visiting the property, fixed the value at Rs. 8,00,000/-, that the. Court, accepting the value fixed by the Bailiff, fixed the upset price at Rs. 8,00,000/-, that the judgment debtor filed as many as nine applications for adjournments, when the property was about to be sold on payment of some amounts, and in all these petitions, he waived fresh proclamation and requested only for further time for payment of the amount, and that therefore, it was fertile on the part of the judgment-debtor to say that no notice was served on him, or that he was not given proper opportunity to submit his objections. The executing Court further held that the upset price was fixed at Rs. 8,00,000/then it was reduced to Rs. 7.00,000/-. Even after that, no one came forward to buy the property and, therefore, it was further reduced to Rs. 6,00,000/-. Before reducing the upset price to Rs. 6,00,000/the judgment debtor was given opportunity to file objections. But he did not avail that opportunity. The executing Court further held that the Court bailiff as R.W.I has clearly stated that proper proclamation was effected not only in the suit premises that was sought to be sold, but also in the Notice Boards of the Collectors Office and the Court. Therefore, the allegation to the contrary cannot, be sustained. But he did not avail that opportunity. The executing Court further held that the Court bailiff as R.W.I has clearly stated that proper proclamation was effected not only in the suit premises that was sought to be sold, but also in the Notice Boards of the Collectors Office and the Court. Therefore, the allegation to the contrary cannot, be sustained. Though the Consulting Engineer, examined as P.W.3 on behalf of the judgment-debtor, has stated that in the year 1980, the suit property would have fetched nearly Rs. 30 lakhs, the executing Court after pointing out the fact that the judgment-debtor himself has given the value of the property at Rs. 7,00,000/and after taking notice that as per the urban land tax notice, the market value of the land was Rs. 24,000/-per ground, held that the statement of P.W.3 that the property would have fetched not less than Rs. 30,00,000/-. cannot be accepted. The executing Court also held that there was only one assessment and one door number for the property sold, and there was no possibility of a portion of the property being sold. In the light of the above findings, the executing Court held that the judgment debtor miserably failed to substantiate his contention that the property has been sold to a lower sum and the provisions of O. 21, Rules 65 to 68 of the Code of Civil Procedure have not been complied with. The Court below also found that if there was any irregularity in bringing the property to sale, the petitioner would not have failed to raise his objections then and there. In the result, the petition to set aside the sale was dismissed with costs. 9. The judgment debtor, aggrieved by the order of the executing Court, preferred C.M.A. No. 337 of 1984. The learned Appellate Judge, in his elaborate judgment, has found that the contention on behalf of the judgment debtor that no proper opportunity was given at the time of settling the proclamation and at the time of sale, cannot be accepted. Likewise, the Appellate Court held that having regard to the fact that the judgment debtor himself has given the upset price at Rs. 7,00,000/and having regard to the fact that he waived fresh proclamation, the reduction of upset price to Rs. 6,00,000/-is not in any way against law and no irregularities have takenplace as alleged by the judgment debtor. Likewise, the Appellate Court held that having regard to the fact that the judgment debtor himself has given the upset price at Rs. 7,00,000/and having regard to the fact that he waived fresh proclamation, the reduction of upset price to Rs. 6,00,000/-is not in any way against law and no irregularities have takenplace as alleged by the judgment debtor. The factual findings given by the executing Court were accepted by the lower Appellate Court. Having accepted the factual findings given by the executing court, the lower appellate Court found that there was violation of O. 21, R. 64, C.P.C. in the sense that there was excessive execution and such excessive execution vitiates the sale. On that ground, the sale was set aside. It may be mentioned that the lower appellate court, to come to the conclusion that there was excessive sale which vitiates the court auction sale, placed reliance on two judgments, one of this Court and the other of the Supreme Court. They are respectively, Takkaseela Pedda Subba Reddy v. Pujari Padma Vathamma and others 1 reported in and Komar Swami Gounder v. P.P. Ramaswamy Nadar and another reported in 2. Though another decision of the Supreme Court in Dhirenira Nath v. Sudhir Chandra reported in 3 was brought to the notice of the lower Appellate Court on the side of the decree holder and the auction purchase the lower Appellate Court followed A.I.R. 1977 SC 1789 (supra). Aggrieved by the judgment of the lower Appellate Court, as stated earlier, both the auction purchaser and the decree holder have filed these Civil Revision Petitions. 10. These Civil Revision Petitions first came up before Sivasubramaniam. J. The learned Judge was of the view that in understanding the ratio laid down by the Supreme Court, there are conflicting views of this court and, therefore, the matter must be authoritatively decided by a full bench for the benefit of the Subordinate Courts. Consequently, the learned Judge framed the following questions for reference to the Full Bench:— “1) Whether a Court auction sale held in contravention of O. 21 R. 64 and O. 21, R. 66(2)(a) of C.P.C. by selling more extent of property than necessary is a nullity being a sale without jurisdiction even in cases where the judgment-debtor had participated in the settlement of proclamation and did not raise any objection for the extent of property brought for sale? 2) In view of the decision of the Supreme Court in Dhirendra Nath v. Sudhir Chandra 3 , whether the decisions in Kumaraswamy Gounder v. P.P. Ramaswamy Nadar 2 , in Subba Naicker v. Durai Raj 4 and in L. Balu v. Periasamy 5 have correctly interpreted the scope of the judgment in T.P.S. Reddy v. Padmakantamma?” This order was passed on 9.2.1988. 11. The Full Bench consisting of Nainar Sundaram, K.M. Natarajan and Bellie, JJ. gave its opinion on 19.9.1989. Nainar Sundaram, J. delivered an order with which K.M. Natarajan, J. concurred. Bellie, J. has given a separate, but concurring order. As the reference to the Full Bench was necessitated in view of the rival arguments addressed by the learned counsel in this very case itself, it is necessary to set out the opinion of the Full Bench, since the opinion has been given after deep deliberations and al so in a matter between the parties. The opinion of Nainar Sundaram, J. with which K.M. Natarajan, J. has concurred, reads as follows:— “Hence, I will answer the first part of question No. 1 by saying that the court auction-sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2)(a), C.P.C. by selling more extent of property than necessary, cannot per force be held to be a nullity, being a sale without jurisdiction and any breach of the above rules may bring the case only within the ambit of O. 21, R. 90, CPC. The opinion expressed by the Supreme Court was on the basis that S. 3S of the Bengal Act was in effect, a statutory addition to O. 21, R. 66, CPC and the said provision could have been added as another clause to the said rule and this statutory provision pertains to the field of proclamation and the rule says so in terms and the said two conditions are also steps to be taken by the Court in the matter of publishing or conducting the sale. Nullity is a proceeding that lacks sanctity at the root of the matter and that proceeding has no foundation in law. It is defective at the inception itself as to be of no avail or effect whatever all. It is void and it is incurable and cannot be validated. Nullity is a proceeding that lacks sanctity at the root of the matter and that proceeding has no foundation in law. It is defective at the inception itself as to be of no avail or effect whatever all. It is void and it is incurable and cannot be validated. Such could not be the position with reference to the violation of O. 21, R. 64, CPC and O. 21, R. 66(2)(a), CPC since the requirements of the said provisions are only in the field of proclamation or in the field of publishing or conducting the sale and violations thereof could only be irregularities bringing any grievance thereon under O. 21, R. 90, CPC. The Supreme Court viewed the noncompliance with the said provisions as a material irregularity in publishing or conducting the sale, bringing the matter within the ambit of O. 21, R. 90, CPC. The Supreme Court did not hold that the violation of the said provisions will make the sale a nullity. That settled the answer to the first part of Question No. 1.” The Supreme Court judgment referred to by the learned Judge is the one reported in A.I.R. 1964 S.C. 1300 (supra). 12. As regards the second part of the first question, the learned Judge observed as follows:— “The second part of Question No. 1 seems to have presupposed that a Court auction sale held in contravention of O. 21, R. 66(2)(a) CPC. by selling more extent of property than necessary is a nullity being a sale without Jurisdiction; and proceeds to ask as to whether the position will stand altered in cases where the judgment-debtor had participated in the settlement of proclamation and did not raise any objection for the extent. Question No. 1 poses the query as to whether the factors envisaged herein would bring an exception to any general rule that a sale as is referred to in the first part of Question No. 1 is a nullity. When the first part of Question No. 1. itself has been answered in the negative, holding that such a sale is not per force a nullity, being a sale without jurisdiction, the participation of the judgment debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale need not be counted as a factor of exception to any proposition to the contrary. The participation of the judgment-debtor in the settlement of proclamation and his not raising any objection for the extent of property bought for sale, may be relevant and have to be considered and looked into, when there is a resort to O. 21, R. 90, CPC. for setting aside the sale on the ground of non-conformity with the provisions of O. 21, R. 66(2)(a) and O. 21, R. 64, CPC. As to how far the participation of the judgment-debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale will preclude him from raising such an objection in an application under O. 21, R. 90, CPC. has also been discussed by the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1 by adverting to the provisions of O. 21, R. 90, CPC as it stood amended in Calcutta then, made it clear that no sale shall be set aside on the ground of irregularity, fraud or failure to issue notice as required by O. 22, unless upon the facts proved, the Court is satisfied that the applicant has sustained sub-stantial injury by reason of such irregularity, fraud or failure, and further, no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person, who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up, unless objection was made by him at that time in respect of defect relied upon. O. 21, R. 90, CPC. after its substitution by Central Act 104 of 1976, has practically adopted the substance of that provision, as per the amendment in Calcutta then. Question No. 1, couched as it is and referred for our answer, does not cover this aspect at all, in the sense it does not call for an answer from us as to how far in an application under O. 21, R. 90, CPC, built on a violation of O. 21, Rules 64 and O. 21, R. 66(2)(a) CPC. the participation of the judgment debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale, would be a factor to be put against him. the participation of the judgment debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale, would be a factor to be put against him. It will not be in order for us to travel beyond the questions specifically referred for our answers. I will be content only to make a reference as to how the Supreme Court in the pronouncement, referred to above, looked into the question, without in any way expressing any categoric opinion of mine over the same. To sum up. The Executing Court had inherent jurisdiction to sell the property. It was assumed that S. 35 of the Bengal Act is a mandatory provision while a directional provisions can be waived, a mandatory provision can only be waived, if it is not conceived in the public interests, but in the interests of the party that waives it. If the party can waive it, the breach of it will only be an irregularity and not a nullity. S. 35 of the Bengal Act is intended only for the benefit of the Judgment debtor and therefore he can waive it and hence a breach of S. 35 of the Bengal Act is not per force a nullity and O. 21, R. 90, CPC will be immediately attracted. The entire discussion of this aspect was in the presumptive field and with the intention to t repel the view contrary to the one expressed in the earlier part of the pronouncement by the Supreme Court. The categoric pronouncements of the Supreme Court is that non-compliance with the provisions of O. 21, R. 64 and O. 21, R. 66, C.P.C. and S. 35 of the Bengal Act would only amount to a material irregularity or defect in publishing or conducting the sale. The categoric pronouncements of the Supreme Court is that non-compliance with the provisions of O. 21, R. 64 and O. 21, R. 66, C.P.C. and S. 35 of the Bengal Act would only amount to a material irregularity or defect in publishing or conducting the sale. The question of waiver was adverted to for the purpose of finding out whether S. 35 of the Bengal Act, assuming that it is mandatory, could be waived, so as to held that the breach of it would only amount to an irregularity and not a nullity, attracting only O. 21, R. 90, C.P.C. Giving the answer in the affirmative, the position was examined in the context of an application under O. 21, R. 90, CPC and since the judgment debtor in one of the matters, did not file objections at all and in the other matter though he filed objections, did not attend at the drawing up of the proclamation, it was held that the sales are not liable to be set aside under the terms of O. 21, R. 90, CPC, the terms of O. 21, R. 90, CPC. As already noted by me, we are hot called upon to answer the question of waiver in the context of an application under O. 21, R. 90, CPC. That is why, I have refrained from giving any positive answer on this aspect. Per chance, it has to be assumed that the provisions of O. 21, R. 64 and O. 21, R. 66(2)(a), CPC are mandatory, as assumed by the Supreme Court with reference to S. 35 of the Bengal Act, then the question as to how far an act done in breach of the said provisions, is per force a nullity would arise. In that context, as to whether the judgment debtor could waive the said provisions, may have to be examined. By applying the same ratio of the Supreme Court, it may be stated that the said provisions are intended for the benefit of the judgment debtor and he can waive them and a contravention of the said provisions would amount to an irregularity only. Then the position will have to be examined only in an application under O. 21, R. 90, CPC. Then the position will have to be examined only in an application under O. 21, R. 90, CPC. As already noted, these questions in terms do not call for our specific answers, as per the terms of reference, and by any observation of mine as above, I should not be understood to have given answers for them. If from the pronouncement of the Supreme Court, guidance has got to be obtained, certainly that is available for any one to take them on the questions. (Paras 7, 8, 11 and 12). 13. As regards the second question, the learned Judge, while considering the ratio laid down by the Supreme Court in A.I.R. 1977 S.C. 1789=90 L.W. 124 S.N. (supra), held as follows:— “. . . This pronouncement of the Supreme Court was on the facts of that case and this pronouncement could not be understood to have militated against the principles discussed and settled by the pronouncement of the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1, which regard to a sale held in contravention of O. 21, R. 64 and O. 21, R. 66(2 Xa) CPC by selling more extent of property than necessary, not being per force a nullity. It has to be noted that in this latter pronouncement, the Supreme Court was examining the question in an application to set aside the sale on the ground of material irregularities. If later pronouncement is to be understood the other way about, then the latter pronouncement being that of a smaller Bench of Two learned Judges of the Su preme Court, will have to give way to the earlier pronouncement of a larger Bench of Three learned Judge of the Supreme Court.” After expressing the view as stated above, the learned Judge held that the judgments of this Court reported in 1980 TLNJ 47’ (supra), 1985 II M.L.J. 123 =98 L.W. 352 (supra) and 100 Law Weekly 918 (supra) were all decided on facts of each case, and there is no conflict among them. In the end, the learned Judge has summed up as follows:— “In any event, the principles to govern the contingencies have been now adverted to and expatiated in the highest court in the land by giving the present answers to the reference, and certainly they shall form the guidance and govern the questions as and when they arise. In the end, the learned Judge has summed up as follows:— “In any event, the principles to govern the contingencies have been now adverted to and expatiated in the highest court in the land by giving the present answers to the reference, and certainly they shall form the guidance and govern the questions as and when they arise. The answers, which I propose to end give for the questions in the reference before as are: (1) A Court-auction sale held in contravention of O. 21, R. 64 and O. 21, R. 66 2) (a), C.P.C. by selling more extent of property then necessary is not a nullity. (2) Such a contravention could be the subject* matter of grievance if there is a warrant for it in an application under O. 21, R. 90, C.P.C. (3) The participation of the judgment debtor in the settlement of proclamation and his not raising any objection for the extent of property brought for sale may be relevant for the purpose of deciding the application under O. 21, R. 90, C.P.C. and such conduct on the part of the judgment debtor may also be viewed as a waiver of the provisions of the requirements of O. 21, R. 64 and O. 21, R. 66 (2) (a), C.P.C. (4) The pronouncements of this Court in (i) Kumaraswami Gounder v. P.P. Ramaswamy Nadar and another 2 concisely reported in 1980 TLNJ 47): (ii) Subba Naicker v. Durai Raj 3 and (iii) L. Balu v. Periasami and others 4 have come to be rendered on the peculiar facts and circumstances of the cases dealt with by the respective learned Judges and they should not be understood to have incorrectly interpreted any pronouncement of the highest Court in the land. (5) In any event, the principles to govern the contingencies have been now adverted to and expatiated in the light of the pronouncement of the highest Court in the land by giving the present answers to the reference and certainty they shall form the guidance and govern the questions as and when they arise. Now answers have been given to the questions referred, the Civil Revision Petitions shall go before the learned single Judge, who deals with Civil Revision Petitions, for adjudication on merits.” 14. Now answers have been given to the questions referred, the Civil Revision Petitions shall go before the learned single Judge, who deals with Civil Revision Petitions, for adjudication on merits.” 14. Bellie, J., in a separate, but concurring opinion while adverting to the judgment of the Supreme Court in A.I.R. 1964 S.C. 1300 (supra), has observed as follows:— Therefore according to the Supreme Court, if the judgment debtor was present at the time of the sale proclamation and did not raise any objection regarding non-compliance with S. 35 or if the judgment debtor even after receipt of notice was not present at the drawing up of the sale proclamation, he cannot later under O. 21, R. 90 raise any such objection Here it may be noted that in O. 2t, R. 90 itself, in clause (3) it has been specifically provided that, “No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was draw up.” In our case, on a reading of R. 66 as counted in Madras, it cannot be said that there is any defect in the sale proclamation. The point is, is there any non-compliance with R. 64. If more than one item of property is attached to be sold, even if the judgment-debtor has not stayed anything as to what is the extent of the property necessary to be sold, when the items are sold one after another and when any one item is sold or more items are sold and the sale proceeds thereof covers the decree amount, then the rest of the items need not be sold. If such further items are also sold in the auction then certainly those sales are unnecessary and without jurisdiction because enough amount to satisfy the decree amount has already been realised. In such cases certainly there will be a contravention of R. 64 since the sale will be exceeding the extent of property necessary to be held to realise the decree amount. In such cases no question of raising any objection by the judgment debtor arises. In such cases certainly there will be a contravention of R. 64 since the sale will be exceeding the extent of property necessary to be held to realise the decree amount. In such cases no question of raising any objection by the judgment debtor arises. But when the property to be sold is a single be sufficient to satisfy the decree and the judgment debtor to whom notice of sale has been sent as required under O. 21, R. 64 states so, then undoubtedly the Court would have to consider that statement of his. If in spite of that statement the Court proceeds with the sale of the entire large compared to the decree amount, then there is no doubt there is infringement of the provisions of R. 64. There is nothing indicating in the Rule that the Court itself, even though the judgment debtor does not state anything, should ascertain if any portion of the property would be sufficient to satisfy the decree. The Judgment debtor might keep quite because he might think that it would be advantageous to him if the entire property is sold rather than a portion of it. Therefore, if the judgment debtor does not raise any voice as regards the extent of the property to be sold he cannot later raise any objection of noncompliance with R. 64. We have seen above, the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1 has accepted the reasoning that an objection that the sale proclamation did not conform to S. 35 of the Bengal Money Leaders Act cannot avail a judgment debtor an application under O. 21, R. 90 if he was present at the drawing up of the sale proclamation and did not raise any such objection at the time, nor can it be availed of by a judgment debtor who after receiving notice was not present at the drawing up of the sale proclamation at all. This reasoning would certainly apply to the judgment debtor who has received notice under O. 21, R. 64 but has not raised any objection as to the extent of the property to be sold. This reasoning would certainly apply to the judgment debtor who has received notice under O. 21, R. 64 but has not raised any objection as to the extent of the property to be sold. A reading of S. 35 of the Bengal Money Lenders Act extracted above will show that it is couched in a strict language for it states to the effect that the proclamation of sale shall specify only so much of the property of the judgment debtor as the court considers to be saleable at a price sufficient to satisfy the decree. The Supreme Court itself states, “S. 35 of the Act is couched in a mandatory form and it casts in terms a duty on the court to comply with its provisions before a sale is held.” That is not the case with R. 64. The Language used in it is certainly not so mandatory as in S. 35 of the Bengal Money Lenders Act, and there is no express duty cast on the court. Therefore considering what the Supreme Court as said with regard to S. 35 of the Bengal Money Lenders Act we can safely hold that in the case of one single item of property, if the judgment debtor has not said anything as to the extent necessary to be sold to satisfy the decree even after receipt of notice under R. 64, he cannot later complain of non-compliance with R. 64. If he has not received any notice that will be a different matter and the entire proceedings would be vitiated. If can be further held that there is no duty cast on the court to ascertain itself any portion of the property necessary to be sold to satisfy the decree. But if it appears to be court apparently from the records that the sale of a portion of the property only is necessary to satisfy the decree, then the court if there is no objection from the judgment debtor and no valid objection from the decree holder, sell that portion of the property alone. Before the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1 it was also argued that the sale without compliance with S. 35 of the Bengal Money Lenders Act was a nullity. Before the Supreme Court in Dhirendra Nath v. Sudhir Chandra 1 it was also argued that the sale without compliance with S. 35 of the Bengal Money Lenders Act was a nullity. To this, the Supreme Court said that though prima facie the provision is mandatory the provision is intended simply for the benefit of the judgment debtor and no public interest is involved and such benefit can be waived by the party concerned and, therefore, non compliance with S. 35 will not render the sale a nullity This being the case, aforsiorary any non compliance with R. 64 cannot at all render the sale a nullity.” After observing as above, the learned Judge expressed his view about the ratio laid down by the Supreme Court in A.I.R. 1977 SC. 1789 (Supra) as follows:— Thus this Supreme Court decision is not a case concerning one item of property sold. Certainly out of the items of properties attached when sale of one item was sufficient to satisfy the decree, it is but natural that the other property shall not be sold. The sale of other property is unwarranted and uncesessary. Therefore, such sale is without jurisdiction and hence it is vitiated. It appears to me, even without O. 21, R. 64, that would be the position even from, the common sense point of view. “Therefore, this ruling of the Supreme Court cannot be taken to be universally applicable to all cases where the extent of property sold is more than the extent of property that would be necessary to satisfy the decree.” 15. Bellie, J. while holding that the judgment in 100 Law Weekly Page 918 (supra) and 1985 II M.L.J, page 123=98 L.W. 352(supra) have been correctly decided, held that the decision in 1980 TLNJ 47 (supra) is not good law. In summing up, the learned Judge observed as follows:— “8. Bellie, J. while holding that the judgment in 100 Law Weekly Page 918 (supra) and 1985 II M.L.J, page 123=98 L.W. 352(supra) have been correctly decided, held that the decision in 1980 TLNJ 47 (supra) is not good law. In summing up, the learned Judge observed as follows:— “8. In the result, from my foregoing discussionof the matter, the following propositions of law would emerge:— i. In the case of a single property of the judgment debtor which is brought to sale, if the judgment debtor after receipt of the sale notice does not plead anything in respect of the extent of the property that would be sufficient to meet the amount to be realised in the execution proceedings, he cannot, after the property is sold, object to the sale contending that the entire property is more than the extent necessary to be sold and therefore the provisions of O. 21, R. 64, C.P.C. is infringed and the sale is liable to be set aside: ii. Such a sale is not a nullity: iii. Even if the judgment debtor does not plead that lesser extent of Property would be sufficient to realise the decree amount, if it prima facie appears to the court that a lesser extent would be sufficient, then if there is no objection from the judgment debtor and no valid objection from the decree holder such lesser extent of property can be sold: iV. If two or more items of properties are attached for sale those properties can be sold one by one and When any one or more properties in/are sold and the sate proceeds thereof covers the decree amount then the remaining properties shall not be sold. If the court considers it expedient to sell the properties in one or more lots and orders so, if the judgment debtor makes no objection for the sale, he cannot later assail the same stating that the properties ought not to have been sold in one lot or lots. V. The above said four propositions of law have to be applied in the case of a share or shares of the judgment debtor attached in the property.” 15. After answering the questions referred to it the Full Bench has returned the case for final disposal by a single Judge. That is how the matter is now before me. 16. Mr. After answering the questions referred to it the Full Bench has returned the case for final disposal by a single Judge. That is how the matter is now before me. 16. Mr. R. Krishnamurthy learned Senior counsel advanced arguments on behalf of the petitioner in both the Civil Revision Petitions. He submitted that in the light of the opinion expressed by the Full Bench, non compliance, if any, of O. 21, R. 64, C.P.C. will not nullify the sale, and if at all, it will be only an irregularity within the meaning of O. 21, R. 90, C.P.C, and even then, the judgment debtor having not raised any objection at the time of settlement of proclamation in spite of opportunity given, there is no scope for setting aside the sale under O. 21, R. 90, C.P.C. Learned counsel further submitted that in view of the concurrent findings of the court below that there were no arguments in any other respect, the judgment of the lower Appellate Court which set aside the sale on the sole ground that the sale was a nullity on account of violation of O. 21, R. 64, C.P.C, cannot be sustained. He also submitted that there was no question of any excessive execution in this case in view of the fact that the property sold in court auction was a single unit subject to a mortgage and that the mortgagee has already obtained a decree and the sale was subject to mortgage. Even otherwise, applying the ratio laid down by the Supreme Court in AIR. 1964 SC. 1300 (supra) the possibility of the judgment debtor suffering a prejudice by selling a portion of the property cannot be ruled out. He also submitted that selling a portion in the facts and circumstances of the case cannot be without violation of the provisions of the Transfer of property Act and also the Municipal Laws; Therefore, the assumption that there was excessive execution was baseless. He also pointed out the relevant portions in the Full Bench to distinguish the judgment in A.I.R. 1977 SC 1789=90 L.W. 124 S.N. (Supra) 17. Mr. R.S. Venkatachari, learned coun sel appearing for the judgment debtor (first respondent in both the Civil Revision Peti tions) argued the matter as if the question referred to the Full Bench are again open for arguments. Mr. R.S. Venkatachari, learned coun sel appearing for the judgment debtor (first respondent in both the Civil Revision Peti tions) argued the matter as if the question referred to the Full Bench are again open for arguments. Out of deference to the learned counsel and in view of his submission that the Supreme Court has taken a different view in a recent judgment in Ambati Narasayya v. M. Subba Rao 1 (reported (next to this case) from that of the Full Bench, I allowed him to argue. 1 do not propose to set out all the contentions advanced before me which could have been open to him to advance but for the answer given by the Full Bench in this very same matter. In my view, the only point that has to be considered is, whether the judgment of the Supreme Court, in AIR 1990 SC 119 (supra) comes to the aid of the judgment debtor notwithstanding the opinion of the Full Bench in this very same case. According to Mr. R.S. Venkatachari, learned counsel appearing for the judgment debtor, the answers rendered by the Full Bench may not be good law in view of the judgment of the Supreme Court in AIR 1990 SC. 119 (supra) According to the learned counsel, in the latest judgment, the Supreme Court has referred to the earlier judgment of the Supreme Court in AIR 1990 S.C 119 =90 L.W. 124 S.N. (supra) and reiterated the ratio laid down in that case. Therefore, the ratio laid down in this judgment (A.I.R. 1990 SC. 1191 (supra)) should be applied to the facts of this case. If so applied, according to the learned counsel, the judgment of the Appellate Court is not liable to be reversed. 18. In reply to the argument of Mr. R.S. Venkatachari. Mr. R. Krishnamoorthy, learned counsel appearing for the decree holder as well as the auction purchaser, submitted, that in the latest Supreme Court judgment (AIR. 1990 SC. 119) (Supra) the facts are entirely different. In that case, the Supreme Court found that the property that was brought to sale was divisible one, and no attempt was made or even thought of for such a division, and on that ground only, the Supreme Court set aside sale. He also pointed out that even in the latest Supreme Court judgment, except referring to the judgment in A.I.R. 1977 SC. He also pointed out that even in the latest Supreme Court judgment, except referring to the judgment in A.I.R. 1977 SC. 1789-90 L.W. 124 S.N. (supra) no reference has been made to the earlier larger Bench judgment of the Supreme Court reported in AIR. 1964 SC. 1300 (supra). He also pointed out that the Full Bench has held that A.I.R. 1977 SC. 1789=90 L.W. 124 S.N. (supra) must be treated as a case decided on the facts of that case, and in any event the earlier judgment being one of a larger Bench, is binding rather than the later judgment in A.I.R. 1977=90 L.W. 124 S.N. (SC. 1789 Supra). Therefore, according the learned counsel for the decree holder, the conclusion of the Appellate Judge that the sale in void an account of the Appellate Judge that the sale is void an account of excessive execution in not sustainable having regard to the ratio laid down by the Supreme Court in A.I.R. 1964 SC. 1300 (supra) as explained by the Full Bench in this very same case. 19. In the Supreme Courts judgment, the facts are like this. An extent of 10 acres of land was sold in court auction for Rs. 17,000/-in execution of a decree for Rs. 2,000/-. The supreme Court, on facts, has found that it could not be said that the land was not divisible or that the division was impracticable or undesirable. The Supreme Court further found that no attempt was made or even thought of to divide the property so that a portion of land could be sold to satisfy the decree. In those circumstances, applying the ratio in A.I.R. 1977 S.C. 1789=90 L.W. 124 S.N.(supra) the sale was set aside. 20. Coming to the facts of our case, we have seen that as many as nine applications were filed by the judgment debtor to adjourn the sale by depositing small amounts. At no time, any objection was raised for the sale of whole of the property nor any suggestion was made in any one of the application that a portion of the property could be sold to satisfy and decree. Further, the judgment debtor himself has given the upset price at Rs. 6 Lakhs whereas the courts value as given by the amin was Rs. 8 Lakhs, and the upset price was fixed at that amount. Further, the judgment debtor himself has given the upset price at Rs. 6 Lakhs whereas the courts value as given by the amin was Rs. 8 Lakhs, and the upset price was fixed at that amount. Only thereafter, after finding that the sale could not be held. On two occasions for want of bidders, the upset price was reduced to Rs. 6 Lakhs. All these factors were taken into account both by the executing court as well as by the Appellate Judge and both of them have concurrently given findings that there were no irregularities or illegalities in the procedure adopted for sale. The Appellate Court, as found already, set aside, the sale only on the ground or excessive execution. The Full Bench has given the opinion that excessive execution will not render the sale void ab unite but will only enable the judgment debtor to challenge the sale under O. 21, R. 90, C.P.C. I have already set out the relevant portions of the Full Bench judgment and I do not think that it is necessary to repeat the same once over. The Full Bench has clearly pointed out that the ruling of the Supreme Court in A.I.R. 1964 S.C. 1300 (Supra) being a judgment of a larger Bench, will prevail, and applying that, the Full Bench further held that a Court auction sale in contravention of O. 21, R. 64, C.P.C. will not be a nullity, and such contravention can be a subject matter of grievance for setting aside a sale under O. 21, R. 90, C.P.C. The Full Bench also further held that the participation of the judgment debtor in the settlement of the proclamation, and his not raising any objection for the extent of property brought for sale may be relevant for the purpose of deciding the application under O. 21, R. 90, C.P.C, and such conduct on the part of the judgment debtor as also be viewed as a waiver of the provisions of the requirements of O. 21, R. 64 and O. 21, R. 66(2)(d), C.P.C. Bearing in mind the opinion of the Full Bench and also the findings of the Appellate Judge on facts, which have also been set out already. I have no doubt that the conclusion arrived at by the learned District Judge that the sale was liable to be set aside on account of excessive execution, cannot be sustained. 21. I have no doubt that the conclusion arrived at by the learned District Judge that the sale was liable to be set aside on account of excessive execution, cannot be sustained. 21. In the circumstances, I do not think that the argument of the learned counsel for the judgment debtor that the ruling of the Supreme Court in A.I.R. 1990 S.C. 119 (supra) squarely applied to the facts of this case and therefore the Civil Revision Petitions are liable to be dismissed can be accepted. 22. In the result, the Civil Revision Petitions are allowed, the order of the learned District Judge is set aside, and the order of the Executing Court is restored. No costs.